IP Flash: Bayer sees advantages for enforcement across Europe!

Bayer has always been extremely supportive of the new Unitary Patent System (UPS) and has been one of the driving forces behind it within the German industry. However, the company will not be putting its full portfolio through the UPS and the Unified Patent Court (UPC).

Instead, Bayer will screen its portfolio and hold back many of its valued patents. Bayer’s decision to withhold has less to do with the UPS (the patent system should work perfectly with the EPO), and more to do with the fact that any UPS patent automatically falls under the UPC. The UPC is a completely new jurisdiction that brings uncertainties with it, and there is a lack of regulation around the supplementary protection certificates (SPC) and the UPS. After an initial settling-in period, the UPC will probably be an effective and reliable system. Yet, until IP professionals have had the opportunity to get a feel for the predictability and reliability of the courts in the UPC, Bayer cannot afford to risk putting its most valued patents into the UPS/UPC. Nevertheless, the goal is to have almost all the company’s filings in the system.

Why not put everything in there from the beginning? This is largely determined by the enforcement and effectiveness of the UPC itself and the availability of an SPC system.

The main issue impacting Bayer’s patent filing strategy is the cost-effectiveness of the UPS and the efficient enforcement of patents through the UPC in one proceeding. In the life science area, firms usually file in a number of European countries anyway, because it is more cost-effective to do process that way. As it stands at the moment, the UPS will be a very effective system. Yet, the biggest challenge for the UPC is to develop a reliable, predictable, and identifiable jurisprudence in a relatively short amount of time. When it comes to pharmaceutical company strategies, Bayer tends not to be mainstream. In fact, during the preparatory work and the development discussions for the UPS/UPC, Bayer was very much alone. A few pharmaceutical companies said that they would add some patents in and leave some out, but others said that they would opt-out all their patents. Others said that they would see how the system developed before making any decisions. However, it is difficult to observe the development of an empty system. Many other companies see the disadvantages and risks of the system. They perceive the risks in revocating an important patent in one spot for the entirety of Europe. However, at Bayer, we see the advantages of this new system for Europe, particularly for its enforcement throughout Europe.